Is physical contact with sexual intent sans penetration assault under POCSO Act? Kerala High Court answers

An act involving physical contact with a child with sexual intent would qualify as sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), even if there is no penetration, observed the Kerala High Court recently [Ajith Prasad Edacherry v State of Kerala].

The Court made the observation while refusing to discharge a teacher from a POCSO case registered against him on allegations that he sexually assaulted a first-standard student.

Justice A Badharudeen observed that the allegations, prima facie, showed sexual intent in the accused teacher’s actions, which aligned with the definition of sexual assault in Section 7 of the POCSO Act.

"Dividing the act of sexual assault, the legislature dealt with three instances (in Section 7 of POCSO Act). The third part is, doing any other act with sexual intent which involves physical contact without penetration. Then the said overt act alone is also sexual assault for the purpose of Sections 9(f),(m) and 10 under the POCSO Act. Here, the accused who is the teacher of the victim, brought him to the staff room and the accused had caused physical contact on the child victim by lying the child upon his body, while he also was lying on the desk. Therefore, the overt acts at the instance of the accused would show physical contact between the minor child and the accused," the Court added.

The accused man, a 58-year-old teacher at St Paul’s AUP School, was accused of taking the minor victim to a staff room and forcing him to lie on the teacher’s body. The teacher was also accused of beating the student when he initially resisted.

The incidents allegedly occurred multiple times, and the victim, fearing further harm, eventually complied.

Criminal charges were eventually framed against the accused teacher by a special court under Sections 9(f) (sexual assault by a staff member in an educational or religious institution), 9(m) (sexual assault on a child below twelve years), and 10 (punishment for aggravated sexual assault) of the POCSO Act.

The special court also invoked Sections 29 and 30 of the POCSO Act, which presumes that the accused is guilty unless proven otherwise and had a culpable mental state.

The accused challenged the trial court's decision by approaching the Kerala High Court with a revision petition, by which he sought a discharge from the case.

The State opposed the plea, arguing that the acts described in the complaint fell squarely under the definition of sexual assault as per Section 7 of the POCSO Act. He emphasised that the accused teacher’s repeated actions showed sexual intent, requiring the framing of charges under the POCSO Act.

However, the counsel for the accused contended that the prosecution’s claims lacked sufficient evidence to constitute such offences.

The Court highlighted the broad ambit of Section 7 of the POCSO Act, which encompasses not only touching private parts but also 'any other act with sexual intent' involving physical contact.

It upheld the presumption under Section 30 of the Act, noting that the accused bore the burden of disproving the existence of a culpable mental state and concluded that the evidence presented justified proceeding with the trial under the provisions of the POCSO Act.

"Thus, this Court could not hold from the records that, offences punishable under Sections 9(f),(m) and 10 of the POCSO Act are not made out, prima facie to frame charge and to proceed with trial. Therefore the order impugned dismissing the discharge plea at the instance of the petitioner/accused does not require any interference," the High Court said while upholding the trial court's view in the matter.

Accordingly, it dismissed the discharge plea.

The accused was represented by advocates Prajit Ratnakaran, Abdul Raoof Pallipath, Rajesh V Nair, and E Mohammed Shafi.

Senior Public Prosecutor Renjit George appeared for the State.

[Read Order]